Antiques Trade Gazette
3 news US judge strikes out resale act
■ 1977 California act declared ‘unconstitutional’
Roland Arkell reports
A FEDERAL judge has declared the 1977 California Resale
Royalty Act unconstitutional. Sotheby’s lawyers at the US District
court in Los Angeles on May 17 described the decision to strike down a highly controversial, widely misunderstood and little enforced state law as “a major victory”. As reported in ATG No 2014, in
November 2011 a group of powerful American artists filed class action lawsuits against Christie’s and Sotheby’s complaining that the auction houses had violated the 35-year-old act. Under the 1977 California law – unique
in the US but similar to the Artist Resale Right laws in the UK – any person selling an artwork by an artist who is either alive or has been dead for less than 20 years must give the artist or the artist’s estate
five per cent of the sale’s proceeds. The law applies to both works of art
sold in California and those sold outside the state by a California resident. It applies only to fine art – defined here as “an original painting, sculpture, or drawing, or an original work of art in glass”. Editioned photographs and prints are not included. The lawsuits alleged that the New York
auctioneers routinely violate the Resale Royalty Act by purposefully concealing the identities and residencies of sellers who live in California, thereby getting around paying artists or their estates a royalty. Certainly the act is seldom enforced:
only around 400 painters and sculptors have received a total of $328,000 in resale royalties since 1977. Hoping to change this, the New York
painter Chuck Close, the Los Angeles artist Laddie John Dill and the estates of Los Angeles sculptor Robert Graham and the Santa Monica painter and printmaker Sam Francis were the lead plaintiffs in the class action suit – only the second fully litigated case on the Resale Royalties Act in its 35-year history
Burges discovery brings £42,000 continued from front page
Museum (and is easily available online) but the whereabouts of the vessel itself was hitherto unknown. It was found by David Harrison, who runs the Fordbrook Estate auction room with Sue Owen, when clearing a house in the nearby village of Etchilhampton. The auctioneers believed it was
made for Burges’ personal ‘use’ as it is engraved to the foot in gothic script: W Burges in remembrance of Tommy Deane his pupil MDCCCLXXIV (1874). It was a tribute to, rather than a memorial for, a favourite student. At the time the flask was made,
Cork-born architect Thomas Manly Deane (1851-1933) was showing only the first signs of a talent that would earn him major commissions in Dublin and a knighthood in 1911. Such personal art objects by William
Burges make only rare appearances on the market, although a hitherto unknown brooch by the architect-designer was sold by Batemans of Stamford last year for £31,000. A more straightforward comparison
with the Wiltshire flask was another memorable Antiques Roadshow discovery, a silver and jewelled bottle formed around a Chinese vase (again the original watercolour survives) which was unsold against an estimate of £40,000- 60,000 at Sotheby’s in March 1998, but later found its way into a Continental museum. Jubilee estimated their bottle at an
eminently buyable £8000-12,000 and on the eve of their May 16 sale were thinking more in terms of £20,000. In fact the undisclosed buyer parted
with £42,000 (plus 15% buyer’s premium).
Roland Arkell
(the other was in 1981). The auction houses, however, have long believed the act was subject to serious legal challenges and had been looking forward to their day in court. Their lawyers argued that California’s
law violates the Commerce Clause of the U.S. Constitution because it is an attempt by one state to control commerce outside its borders. In granting a motion by Christie’s and
Sotheby’s to dismiss the class-action suit Federal Judge Jacqueline Nguyen agreed. “Under its clear terms, the (Resale Royalties Act) regulates transactions occurring anywhere in the United States, so long as the seller resides in California. “Even the artist, the intended
beneficiary of the CRRA, does not have to be a citizen of, or reside in, California,” Nguyen said. “For these reasons, the court finds
that the (law) has the ‘practical effect’ of controlling commerce ‘occurring wholly outside the boundaries’ of California even though it may have some ‘effects within the state’. Therefore, the (law) violates the Commerce Clause.” Representing the plaintiffs, Los
Angeles attorney Eric George said the matter was not over: “For a single federal judge to invalidate the law, more than 35 years later, and without allowing any evidence to be taken, marks a departure from established constitutional law. “We are confident, as both sides have
always believed, this case will ultimately be resolved by the Ninth Circuit Court of Appeals, which already upheld this very statute in 1981.” California is the only state in the
USA that has such a law, although the country’s main copyright and licensing collecting agency is pushing to see the debate over pan-American artists’ resale rights revived on Capitol Hill. Supported by Bruce Lehman, ex-US
Commissioner of Patents, and Senator Herbert Kohls from Wisconsin, the Artists’ Rights Society hope to bring an abridged version of resale rights into federal law. It would apply only to art sold by
auctioneers with a turnover of more than $25m and only for sales over $10,000. Dealers and internet auctioneers would not be affected.
SAMANTHA Homes and Evan Mcpherson have opened a new auction house to join the shop and warehouse they already run. East Bristol Auctions were set to
hold their first sale on Saturday, May 26, based at Hanham Business Park in Bristol, and on the rostrum was auctioneer Mark Dunscombe. They will initially hold monthly
Saturday sales of antique and general items with “further specialist sales” planned for the future. Samantha and Evan run two
businesses near Chippenham in Wiltshire: 2MK Antiques (online period and antique furniture) and Kington Antiques & Interiors.
PEOPLE
CHRISTIE’S have appointed chairman of post-War and contemporary art development Amy Cappellazzo to a new role in private sales in the same field. She took up the role of chairman in May this year, and before that was deputy chairman, Christie’s Americas, from 2008, following seven years as international co-head of Contemporary art. John Good has been appointed
senior vice-president, private sales, based in the Americas. He joins Christie’s
with over 30 years of art world experience, having started at the Leo Gastelli Gallery in 1979. From 1985- 95 the John Good Gallery represented Modern and Contemporary artists, and in 1999 he joined Gagosian Gallery as a director.
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23/05/2012 10:45
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